(From previous issue) :
In support of his submissions he cites a decision of this court in the case of Mohammad Atikur Rahman vs Ainunnahar reported in 7 BLT 241. Drawing in analogy from the 7 BLT decision, he submits that in that case the court up held the principle that the defendant being the husband and not a pardahnashin lady he cannot be represented by an agent. Relying upon his submissions and the relevant provisions of the Family Courts Ordinance drawing support, from the decision of the High Court Division in the/ BLT 241 case, he concludes his submissions upon assertion that the Rule bears merit and therefore ought to be made absolute for ends of justice.
11. We have heard the learned Advocate and perused the application and materials on record including the Orders of the learned Courts below. We have also perused Section 21 and Section 10 of the Family Court Ordinance, 1985 and have gone through the 7 BLT 241 High Court Division decision placed before us.
12. Upon plain reading of Section 21 of the Ordinance it is quite evident that as per this section otherwise than as a witness all other persons except a ‘pardahnashin’ lady are required under the law to appear before the Family Court. Section 21 of the Family Court Ordinance is reproduced hereunder:
If a person required under this Ordinance to appear before a Family Court, otherwise than as a witness, is a pardahanshin lady, the Family Court may permit her to be represented by a duly authorized agent.
13. From a plain reading of Section 21 it is quite clear that otherwise than as a witness only a ‘pardahnashin’ Lady may be allowed to be represented by a duly authorized agent before a Family Court. The Family Court Ordinance, 1985 has specifically confined and limited the permission to appear through duly authorised agent to a ‘pardahnashin’ lady only. The law is also quite transpirent on the provision that otherwise than as witnesses, all others, who are required under the Ordinance to appear except a ‘pardahnashin’ lady have to appear in person before the Family Court.
14. We have also perused section 10 of the Ordinance and after perusal of the section we find force in the submission of the learned Advocate for the petitioner on his assertion that Section 10 is not applicable in the instant case since them out perused dt Section 10 it is also clear that Section 10 contemplates a pretrial proceeding only and therefore, in this case the pre-trial proceeding being concluded with, Section 10 is not at all applicable here in the case before us. We have also perused the 7 BLT 241 High Court Division decision placed by the learned Advocate of the petitioner and since upon perusal it is revealed that the facts in that case and the instant case before us are similar, and upon our own interpretation of the relevant laws, we are in respectful agreement with the 7 BLT 241 case.
15. Under the facts and circumstances and for the reasons stated above we find merits in the Rule. In the result, the Rule is made absolute and the Judgment and order dated 17-5-2016 passed by the Additional District Judge, 5th Court, Dhaka in Family Appeal No. 255 of 2015 rejecting the appeal thereby affirming the order dated 6-8-2015 passed by the learned Additional Assistant Judge, Family Court No. 3, Dhaka in Family Suit No. 531 of 2014 rejecting the application dated 14-5-2015 is hereby set-aside.
Order of stay granted at the time of issuance of the Rule is hereby vacated.
In support of his submissions he cites a decision of this court in the case of Mohammad Atikur Rahman vs Ainunnahar reported in 7 BLT 241. Drawing in analogy from the 7 BLT decision, he submits that in that case the court up held the principle that the defendant being the husband and not a pardahnashin lady he cannot be represented by an agent. Relying upon his submissions and the relevant provisions of the Family Courts Ordinance drawing support, from the decision of the High Court Division in the/ BLT 241 case, he concludes his submissions upon assertion that the Rule bears merit and therefore ought to be made absolute for ends of justice.
11. We have heard the learned Advocate and perused the application and materials on record including the Orders of the learned Courts below. We have also perused Section 21 and Section 10 of the Family Court Ordinance, 1985 and have gone through the 7 BLT 241 High Court Division decision placed before us.
12. Upon plain reading of Section 21 of the Ordinance it is quite evident that as per this section otherwise than as a witness all other persons except a ‘pardahnashin’ lady are required under the law to appear before the Family Court. Section 21 of the Family Court Ordinance is reproduced hereunder:
If a person required under this Ordinance to appear before a Family Court, otherwise than as a witness, is a pardahanshin lady, the Family Court may permit her to be represented by a duly authorized agent.
13. From a plain reading of Section 21 it is quite clear that otherwise than as a witness only a ‘pardahnashin’ Lady may be allowed to be represented by a duly authorized agent before a Family Court. The Family Court Ordinance, 1985 has specifically confined and limited the permission to appear through duly authorised agent to a ‘pardahnashin’ lady only. The law is also quite transpirent on the provision that otherwise than as witnesses, all others, who are required under the Ordinance to appear except a ‘pardahnashin’ lady have to appear in person before the Family Court.
14. We have also perused section 10 of the Ordinance and after perusal of the section we find force in the submission of the learned Advocate for the petitioner on his assertion that Section 10 is not applicable in the instant case since them out perused dt Section 10 it is also clear that Section 10 contemplates a pretrial proceeding only and therefore, in this case the pre-trial proceeding being concluded with, Section 10 is not at all applicable here in the case before us. We have also perused the 7 BLT 241 High Court Division decision placed by the learned Advocate of the petitioner and since upon perusal it is revealed that the facts in that case and the instant case before us are similar, and upon our own interpretation of the relevant laws, we are in respectful agreement with the 7 BLT 241 case.
15. Under the facts and circumstances and for the reasons stated above we find merits in the Rule. In the result, the Rule is made absolute and the Judgment and order dated 17-5-2016 passed by the Additional District Judge, 5th Court, Dhaka in Family Appeal No. 255 of 2015 rejecting the appeal thereby affirming the order dated 6-8-2015 passed by the learned Additional Assistant Judge, Family Court No. 3, Dhaka in Family Suit No. 531 of 2014 rejecting the application dated 14-5-2015 is hereby set-aside.
Order of stay granted at the time of issuance of the Rule is hereby vacated.
